Brandon A. v. NHDOE

Brandon A. v. NHDOE                    CV-00-25-B        08/08/01
                   UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE


Brandon A . , by and through
his parent and next best friend,
David A . , on behalf of himself and
all others similarly situated

     v.                                     Civil No. 00-025-B
                                            Opinion No. 

Nicholas Donahue, in his Official
Capacity as Commissioner of The New
Hampshire Department of Education



                         MEMORANDUM AND ORDER


     Brandon A. is a student with learning disabilities who is

entitled to a free and appropriate public education pursuant to

the Individuals with Disabilities Education Act      ("IDEA" ) , 

, et seq.    Brandon has brought a class action

complaint for declaratory and injunctive relief against the

Commissioner of the New Hampshire Department of Education

("NHDOE"), alleging that Brandon and his fellow class members

have been denied their right under the IDEA to a due process

hearing and a decision within 45 days after a request for a

hearing is filed with the NHDOE.       The Commissioner has moved to

dismiss the complaint alleging that Brandon did not have standing
when he filed suit and that his claim is moot because he received

the hearing he requested.



                            I.   BACKGROUND1

A.   Brandon A.

     Brandon is a fourteen year-old educationally disabled

student in the Epsom School District          (the "School District").   He

is currently attending the Wreath School, a residential

educational facility in Pike, New Hampshire.

     On July 1, 1999, Brandon's father requested a due process

hearing challenging the School District's refusal to provide

Brandon with an extended school-year program in a therapeutic

setting.   He also alleged that the School District failed to

identify Brandon as "seriously emotionally disturbed" and to

create an individualized education program ("IEP") that addressed

his emotional disability.

     In response to the request,          the NHDOE assigned Attorney Siff

to conduct a mediation session with the parties on July 22, 1999,

and to preside at their hearing on August 16, 1999.           The parties


     1 Except where noted, I take the facts from the Second
Amended Complaint, Doc. No. 44, and the parties' briefs.

                                  -   2   -
unsuccessfully attempted mediation on two occasions.      Because

Attorney Siff conducted the mediation sessions, he recused

himself from sitting as the hearing officer.

     On July 30, 1999, Attorney John Lebrun notified the parties

that he would preside as the hearing officer.     At that time,

Lebrun scheduled a prehearing conference for August 20, 1999,

thereby canceling the August 16, 1999 hearing.

     In a letter dated July 30, 1999, the School District

requested that Brandon's father sign a release covering any and

all records and oral information in the possession of various

psychiatric hospitals,   counseling services, and other

organizations that provided services to Brandon.     Brandon's

father objected to the School District's request.

     At the prehearing conference on August 20, 1999, the School

District filed a motion to compel Brandon's father to sign the

release.   Brandon's father countered with a motion for a

protective order arguing that the records were not essential

because the issues he had raised could be resolved based on the

records in Brandon's existing educational file.     He further

objected to signing the release on the grounds that such broad



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discovery would frustrate the IDEA's requirement that a hearing

be concluded and a final decision rendered within 45 days of the

receipt of a request for a hearing.

     At the August 20, 1999 prehearing conference,         the hearing

officer recused himself because he had previously represented

Brandon in an involuntary emergency admission proceeding.          The

NHDOE reassigned the case to Hearing Officer Jeanne Kincaid

("Officer Kincaid").   On August 26, 1999, the parties resubmitted

their motions regarding discovery.

     At the second prehearing conference held on September 2,

1999, Officer Kincaid informed the parties that if Brandon's

father did not sign the release,         she would consider issuing an

order compelling him to do so.       Over Brandon's father's

objection.   Officer Kincaid also granted an extension of the 45-

day requirement for issuing a decision because of the change in

hearing officers and the need to secure documentation from

outside agencies.

     On September 10, 1999, Officer Kincaid issued a "Discovery

Order" requiring Brandon's father to sign the release.          When he

did not comply with the discovery request. Officer Kincaid

dismissed the case without prejudice.

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     Brandon's father then filed suit in this Court, pursuant to

the IDEA, 

 1 5 (i)(2), appealing Officer Kincaid's

decision requiring that he sign a release and dismissing

Brandon's case.    He also brought a claim on behalf of his son and

all others similarly situated, pursuant to 

, to

enforce their right to a timely impartial due process hearing and

decision under the IDEA, 

(f).

     After a hearing in this court on October 26, 2000, the

parties agreed that the court should remand Brandon's individual

claims to Officer Kincaid.    Officer Kincaid held a two-day

hearing on December 19 and 22, 2000, and issued a decision on

January 2, 2001.    She awarded Brandon three months of

compensatory education and ordered the School District to revise

its evaluation and meeting procedures to comply with recent

amendments to the IDEA.

     Brandon filed a second amended complaint on November 22,

2000, alleging that the NHDOE's system of hearings denies

students their right to a timely impartial due process hearing

and corresponding decision under the IDEA, 

(f).

B.   Class Allegations

     From 1989 to 1999, the NHDOE received about 80 requests per

                                 -   5   -
year for due process hearings.2       Of the 80 requests, a decision

was issued in an average of 15.82 cases per year.       The remaining

cases settled, were resolved through mediation,      or were

withdrawn.   Since 1989, only 11 out of the 171 hearings conducted

were decided within 45 days.     Furthermore, in 96 out of the 171

hearings held since 1989, the hearing officers took over 100 days

to conclude the hearing and reach a decision.

     In addition,    in 1994, the Office of Special Education

Programs determined that the NHDOE was not complying with the 45-

day requirement.     See Tr. of Oral Argument, Oct. 26, 2000, Doc.

No. 41, at 44.     A due process hearing is considered to be in

compliance when the hearing and decision is rendered within the

45-day limit or when the hearing officer provides a written order

specifically granting a party's request for an extension to the

45-day limit.    I d . at 42.

     The NHDOE allegedly causes delays in the hearing process by

assigning hearing officers to cases in a way that increases the

possibility of conflicts and scheduling difficulties.          The NHDOE



     2 To put the number of requests in context, there are
approximately 30,000 students receiving special education
services in New Hampshire.

                                  -   6   -
also allows hearing officers to schedule hearings according to

openings in their private practice schedules.                 The hearing

officers also allegedly perpetuate these delays by not limiting

the number of witnesses or the scope of the evidence at a

hearing, by granting continuances without requiring a party to

show good cause, and by permitting school districts to engage in

broad discovery that often requires the extension of a hearing

beyond 45 days.     The NHDOE has not promulgated rules addressing

discovery in due process hearings.                Thus, discovery is governed

by the New Hampshire Department of Justice Model Rules, which

allow parties to seek any information that is "necessary for a

full and fair presentation of the evidence at the hearing."

Epsom Sch. Dist.'s Decision Mem.,               Doc. No. 21, A p p . I at 12.



                        II.    STANDARD OF REVIEW

        A motion to dismiss for lack of subject matter jurisdiction

pursuant to Fed. R. Civ. P. 12(b) (1) challenges the statutory or

constitutional power of the court to adjudicate a particular

case.     2 James Wm. Moore et al., Moore's Federal Practice §

12.30[1]    (3d ed. 1997).    The party seeking to invoke the court's



                                    -   7   -
jurisdiction bears the burden of establishing by competent proof

that jurisdiction exists.    See Coventry Sewage Assocs. v. Dworkin

Realty C o ., 

 (1st Cir. 1995).   The court must

construe the complaint liberally,    treating all well-pleaded facts

as true and indulging all reasonable inferences in favor of the

plaintiff.    See Murphy v. United States, 

     (1st

Cir. 1995).    "[The] plaintiff, however, may not rest merely on

unsupported conclusions or interpretations of law."      

(internal quotation marks omitted).     When ruling on a Rule

12(b)(1) motion,   the court may consider whatever evidence has

been submitted in the case, including affidavits and exhibits.

See Aversa v. United States, 

   (1st Cir. 1996).

I apply this standard in resolving the Commissioner's motion to

dismiss.

     Before considering the parties'    arguments, however,    I first

provide an overview of the IDEA'S requirements.



                            Ill.   THE IDEA

     The purpose of the IDEA is "to ensure that all children with

disabilities have available to them a free appropriate public

education that emphasizes special education and related services
designed to meet their unique needs and prepare them for

employment and independent living."                 

(d)(1)(A).

A disabled child's right to a free and appropriate public

education is assured by the development and implementation of an

individualized education program                 ("IEP").   See Honiq v. Doe, 

    (1988).   An IEP must contain both a statement of

the child's "present levels of educational performance" and "a

statement of the special education and related services and

supplementary aids and services to be provided to the child."                         

(d)(1)(A)(i),      (ill).            l E P ' s m u s t b e revised not less

than annually.     See i d . § 1 4 1 4 (d)(4)(A)(i).

     The IDEA also provides children with disabilities and their

parents with a number of important procedural safeguards.                       See

i d . § 1415(a).   A disabled child's parents must be included as

part of the team that develops and reviews a child's IEP.                       See

i d . § 1414(d)(1)(B)(i).     Parents are also entitled to examine all

records relating to the child; to participate in meetings

concerning the child's educational placement; to obtain an

independent educational evaluation of the child; to receive

written notice of any proposal to alter or to refuse to alter the

child's educational placement; and to present complaints with

                                     -   9   -
respect to any matter relating to the identification,                    evaluation

or educational placement of the child.               See i d . § 1415(b).

     Children with disabilities and their parents also have the

right to an impartial due process hearing before a state

educational agency.   See i d . § 1415(f).               In addition, the agency

"shall ensure that not later than 45 days after the receipt of a

request for a hearing--     (1) A final decision is reached in the

hearing; and   (2) A copy of the decision is mailed to each of the

parties."   

(a)             (2000).    Although this

requirement is not absolute, adherence to the requirement is

intended to be the rule rather than the exception.                     "The

legislative history, statutory terms, and regulatory framework of

the IDEA all emphasize promptness as an indispensable element of

the statutory scheme ... because children develop quickly and

their needs often change substantially from year to year."                        Amann

v. Town of Stow, 

       (1st Cir. 1993)       (internal

quotation marks and citations omitted).                  Therefore,    the prompt

disposition of disputes concerning a disabled child's educational

placement or IEP is necessary for the resolution to "serve any

substantively useful purpose."         I d . (quoting Bow Sch. Dist. v.

Quentin W ., 

           (D.N.H. 1990)).        The New

                                  -   10   -
Hampshire regulations,    therefore,           allow a hearing officer to

grant specific extensions of time beyond the 45 days for specific

periods of time only at the request of either party and for good

cause shown.     See N.H. Code Admin. R. Ed. 1128.10(b)           (1998); 

(c).



                            IV.   DISCUSSION

        The Commissioner argues that Brandon did not have standing

when he filed suit, and, in the alternative,              that his claims are

now moot because he received a decision from Officer Kincaid.3                 I

begin by discussing whether Brandon had standing when he filed

suit.     I then consider the merits of the Commissioner's argument

that Brandon's claims are now moot.




     3 The Commissioner also argues that this case is not
justiciable because Brandon failed to exhaust certain state
administrative remedies.  This argument lacks merit for two
reasons.  First, the Supreme Court held in Patsy v. Board of
Regents of Florida, 

 (1982), that exhaustion of state
administrative remedies is not a prerequisite to bringing an
action pursuant to 

.  I d . at 516.  Second,
Brandon exhausted the only administrative procedure required
under the IDEA, the due process hearing.    See 

(1); Weber v. Cranston Sch. Comm.. 

(1st Cir. 2000).

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     A.     Standing

     Both constitutional and prudential considerations

potentially constrain a plaintiff's standing to sue in federal

court.    Bennett v. Spear, 

   (1997) .   The

constitutional aspect derives from the requirement that federal

courts can hear only a justiciable case or controversy.                      U.S.

Const, art. III.       The "irreducible constitutional minimum of

standing" consists of three requirements:                (i) the plaintiff must

have suffered an "injury in fact;"                (ii) the cause of the alleged

injury must be "fairly . . . traceable" to the defendant; and

(iii) the injury must be "redress[able]               by a favorable decision."

Bennett, 

      (quoting Luian v. Defenders of Wildlife,

      (1992)).

     To satisfy the Constitution's injury-in-fact requirement, a

plaintiff must demonstrate the deprivation of a:                 (i) "legally

protected interest,"      (ii) that is "concrete" and "particularized"

in the sense that the alleged injury must affect the plaintiff in

a "personal and individual way," and that is                 (iii) either

"actual" or "imminent."       Defenders of Wildlife, 

-

61 & n.l.    Where, as here, a plaintiff seeks prospective relief,

past exposure to illegal conduct will not suffice to show

                                     -   12   -
imminent harm.     City of Los Angeles v. Lyons, 

(1983)    (quoting O'Shea v. Littleton, 

(1974)).    Rather,   in order to establish imminence, a plaintiff

must allege facts showing that the "injury is certainly

impending," Adarand Constructors,              Inc. v. Pena, 

(1995)    (quoting Defenders of Wildlife, 

 n.2)

(internal quotation marks omitted), such that there is "a

sufficient likelihood that he will again be wronged,"                Lyons, 

; see Berner v. Delahantv, 

                (1st Cir.

1997) .

     The plaintiff bears the burden of satisfying these

requirements.      See Berner, 

.          He must provide

factual allegations, either direct or inferential,              concerning

each of the standing requirements.              See DuBois v. United States

Dep't of Aqric., 

        (1st Cir. 1996).   "At the

pleading stage,     [however,] general factual allegations of injury

resulting from the defendant's conduct may suffice,              for on a

motion to dismiss we presume that general allegations embrace

those specific facts that are necessary to support the claim."

I d . at 1281-82   (internal quotation marks and citations omitted).



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        Brandon's complaint satisfies the constitutional

requirements of standing.     He has alleged a sufficient injury in

fact because he claims that he was denied his alleged right under

the IDEA to a hearing and a decision from the NHDOE within 45

days.     His alleged injury is fairly traceable to the Commissioner

because Brandon claims that he was denied a timely hearing

pursuant to NHDOE policy rather than the whim of a single hearing

officer.     Finally, his claimed injury was redressable when he

filed suit because I could have ordered the Commissioner to give

Brandon the hearing he sought.

        To the extent that the Commissioner also argues that Brandon

lacks standing because he asserts only a generalized grievance,       I

also reject this argument.     Brandon sued because he was denied

his right to a prompt resolution of his dispute with the school

district.     His particularized injury does not become a

generalized grievance merely because other disabled students also

were denied a prompt resolution of their IDEA disputes.

Accordingly,    I reject the Commissioner's standing claims.

        B.   Mootness

        The fact that a plaintiff may have standing to sue when suit

is commenced does not end the inquiry.        "Under Article III of the

                                 -   14   -
Constitution,     federal courts may adjudicate only actual,                ongoing

cases or controversies."        Lewis v. Continental Bank Corp., 

      (1990)   (citing Deakins v. Monaghan, 

   (1988)).    Furthermore, Article Ill's "case-or-controversy

requirement subsists through all stages" of litigation.                     

Thus, "an actual controversy must be extant at all stages of

review, not merely at the time the complaint is filed."

Arizonans for Official English v. Arizona, 

    (1997)

(quoting Preiser v. Newkirk, 

                 (1975)).

      In Arizonans for Official English, the Supreme Court

described the mootness doctrine as "the doctrine of standing set

in a time frame: The requisite personal interest that must exist

at the commencement of litigation                 (standing) must continue

throughout its existence        (mootness)."          520 U.S. at 68 n.22

(internal quotation marks and citations omitted).                  Consequently,

"throughout      [the course of] the litigation,            [a] plaintiff      'must

have suffered,     or be threatened with, an actual injury traceable

to the defendant and likely to be redressed by a favorable

judicial decision.'"        Spencer v. Kemna, 

 (1998)

(quoting Lewis, 

).                 When "the party invoking

federal court jurisdiction no longer has a personal stake in the

                                     -   15   -
outcome of the controversy," a once justiciable controversy

becomes moot and the court loses subject matter jurisdiction to

consider the matter further.       Thomas R.W. v. Mass. Dep't of

Ed u c ., 

    (1st Cir. 1997)   (quoting Boston and

Maine Corp. v. Bhd. of Maint. of Wav Employees, 

(1st Cir. 1996)).       The party arguing that a claim is moot,

however, bears the heavy burden of establishing mootness.           See 15

Moore et a l ., supra, § 101.101.

        In this case. Officer Kincaid resolved Brandon's claims

concerning the educational services he is entitled to under the

IDEA.     She held a due process hearing and issued an order on

January 2, 2001, awarding Brandon three months of compensatory

education and ordering the School District to revise its

evaluation and meeting procedures to comply with recent

amendments to the IDEA.        See Def.'s Mot. to Dismiss, Doc. No. 45,

at Exh. A.     Brandon has not appealed Officer Kincaid's decision.

Accordingly,       the Commissioner argues that Brandon's claims are

moot because he received the hearing he sought.

        Brandon,    in turn, argues that his claim is saved by an

exception to the mootness doctrine that applies when a defendant

voluntarily ceases its illegal conduct before a court can rule on

                                    -   16   -
the merits of the case.    See Northeastern Fla. Chapter of Assoc.

Gen. Contractors of Am. v. City of Jacksonville, 

   (1993); City of Mesquite v. Aladdin's Castle,            Inc., 

   (1982).   In a case such as this, where a defendant

voluntarily accords the plaintiff the relief he seeks after suit

has been commenced,   the defendant's cessation of its allegedly

illegal activity will not moot the case unless "it is absolutely

clear that the allegedly wrongful behavior could not reasonably

be expected to recur."    Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs., Inc., 

   (2000) .

      I agree that this case fits comfortably within the voluntary

cessation of illegal activity exception to the mootness doctrine.

If the Commissioner had not voluntarily agreed to give Brandon a

hearing on his challenge after suit was brought, he would still

be waiting for relief from this Court.              Further,   I cannot say on

the present record that it is absolutely clear that Brandon and

other disabled students could not face a wait of more than 45

days before receiving a future decision from the NHDOE if I were

to dismiss this case as moot.        Accordingly,        I reject the

Commissioner's mootness argument.



                                 -   17   -
                          V.   CONCLUSION

      I deny the Commissioner's motion to dismiss,            (Doc. No. 45)

because I find that Brandon's claims remain justiciable.

      SO ORDERED.




                                             Paul Barbadoro
                                             Chief Judge
August   8, 2001

cc:   Nancy J. Smith, Esq.
      Ronald K. Lospennato, Esq.
      Diane M. McCormack, Esq.
      John F. Teague, Esq.




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